Mexican minors crossing border are vulnerable

A two-year investigation into the treatment of minors who try to cross the U.S.-Mexico border alone has found that a U.S. law meant to protect them is not being used effectively, according to a report released this week by a binational coalition of children's advocates.

“We are trying to close the gap here between the law and how it is implemented and plays out for this group of vulnerable children,” said Betsy Cavendish, executive director of the Washington, D.C.-based Appleseed.

The Trafficking Victims Protection and Reauthorization Act of 2008 is supposed to keep Mexican children from being returned to Mexico until they have had a proper interview to determine they are not human trafficking victims, cannot seek asylum and to give them the option of returning home or remaining in U.S. custody for further consideration of their case.

The report found the ineffective application of the law leads to minors being returned to Mexico without the in-depth intended screening and without the proper understanding of their option to stay in a shelter for children and not in jail, said the advocates.

“The revolving door that has existed at the border for these vulnerable children is still spinning today,” Nachman said about the Mexican minors. “The screenings, on the whole, are not being conducted and not in a meaningful fashion.”

The largest problem, according to the advocates, with how the law has been implemented is that the Department of Homeland Security tasked Customs and Border Protection - Border Patrol agents and Ports of Entry Officers – with interviewing the minors to determine eligibility for shelter.

Customs and Border Protection released the following statement in response to the report.

“DHS is committed to upholding the law by ensuring a stringent screening process for unaccompanied alien children to help identify and protect victims of human trafficking, and we work closely with the Department of Health and Human Services to ensure the integrity of this process and provide for the care and custody of these minors.”

The advocates recommend the interview and screening responsibilities be transferred to the U.S. Citizenship and Immigration Services agency, which oversee applications for citizenship, greencards and other immigration benefits.

“The original sin here was appointing CBP (Customs and Border Protection) to handle this issue,” said Steven Schulman, a partner at Akin Gump Strauss Hauer & Feld in D.C. and co-author of the report. “This is a child welfare issue.”

Mexican children used to be turned back immediately and authorities did not inquire about their treatment or the circumstances that led them to migrate alone. In contrast, minors from Central America and other countries are automatically referred to shelters run by the Department of Health and Human Services because their countries are not contiguous with the U.S.. There, the “other than Mexican” minors are given services and provided legal counsel.

The majority of unaccompanied minors apprehended along the border are from Mexico, yet the shelters are set up mostly for children from Central American children and other countries, the report found. In the past two years about 16,000 Mexican minors have been apprehended each year along the border.

Under the law Mexican children are interviewed and then given a choice to return to Mexico or to stay in detention. The advocates found that the minors do not always understand that choosing to remain means going to a shelter for children and not going to jail, said David Nachman of DLA Piper in New York and a co-author of the report

Advocates also found fault with the Mexican side of the process. Once the government gets custody of the children from the U.S., the report found, Mexican officials return children to the homes as quickly as possible without taking into account the circumstances that led to their attempted departure.

“Think about what it takes for a 15-, a 16-, a 17-year-old kid to decide to leave home and travel over 1,000 miles through unknown territory and to cross a hostile border,” Nachman said. “You know that kid isn’t doing it lightly and in some cases at least is running away from very difficult circumstances within the home and within the community.”

Some of the findings and recommendations include:

Finding: CBP is the wrong agency to interview unaccompanied Mexican children

Recommendation: transfer screening responsibilities to U.S. Citizenship and Immigration Services

Finding: Border Patrol facilities are inappropriate environments for interviewing children